About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Friday, September 6, 2013

Stop and Frisk

Stop
and Frisk

The
New York City Police Department’s “Stop and Frisk” policy was recently held to
be unconstitutional by a U. S. District Judge, violating the necessity of equal
protection of the law.The practice was
an unconstitutional application of racial profiling as applied, with the great
majority of those stopped were non-white young men; and this ratio appeared
even in neighborhoods that were predominately white.(I might also suggest it is questionable on
the basis of sex as well as race, since to my knowledge, few if any women have
been stopped and frisked.)While racial
profiling is the flaw in stop and frisk that has been highlighted by the news
media, it has other problems even more fundamental.

The
stop and frisk doctrine was one of the Supreme Courts first cuts on the way to
eviscerating the Fourth Amendment’s requirement of probable cause before the
state could search a person or his property.While New York City has been the recent center of attention, stop and
frisk is used universally by police forces nationwide.The Court ruled that the police could
momentarily detain a person and question him if they had reasonable suspicion
that they person was engaged in unlawful behavior.Since stopping and detaining a possibly
dangerous person could put the officer himself in danger, the officer would be
entitled to briefly search the person’s body (frisk) for the purpose of
determining if he was carrying a weapon.Notice that the right to question safely was the justification for the
frisk[1] and that the search should
be no more intrusive than necessary to detect weapons.

But
the racial profiling revealed in New York is merely an example of the doctrine
improperly applied.The doctrine itself
contains two fundamental flaws that call for the end of the practice.The first is that “reasonable suspicion” is
undefined, and probably undefinable so that no standards for regulating police
behavior can be articulated.The second
is the lack of any clear distinction between a frisk necessary for the officer’s
safety and an illegal warrantless search.Both of these defects have frequently surfaced in cases involving
contraband drugs.

Reasonable
suspicion has shown up in many drug possession cases in which the arresting
officer has to justify his decision to stop and frisk the defendant in order to
question him.As these cases make
painfully obvious, “reasonable suspicion” has no connection with – or even
correlation to – any criminal conduct.At best, the police testimony reveals behavior that deviates from the
individual officer’s personal judgment of what is normal behavior.In what way do driving below the speed limit,
paying cash for an airline ticket, buying a one-way ticket instead of
roundtrip, being too well-dressed for a bus passenger, not looking at (or
staring at) a police car parked by the road, or being too nervous (or too calm)
to be an airline passenger support any belief that the person is engaged in
criminal behavior?

The
best way to judge the reasonableness of an activity is to measure the
results.The New York data shows that “reasonable
suspicion” is far from reasonable.The
data show that over eighty-eight per cent of the stops resulted in no police
action:the detained person was released
without citation or arrest.Can any
behavior be reasonable if it proves erroneous in nine cases out of ten?Even in terms of reaching its stated goal,
stop and frisk is an unreasonable failure. The mayor and police commissioner of New York
claim that one of the major goals of the program is to remove illegal guns from
the street and brag that it has detected and seized over 8,000 firearms.However, the numbers show that the stop and
frisk found guns in only 0.15 percent of the cases – or fewer than two guns in
each thousand stops.Is this meager
result a reasonable justification for the program?

Although
questioning is the ostensible goal of the stop, most often the questioning is
used only as a pretext for the frisk.The court allowed the frisk as a minimal intrusion into the privacy
protected by the Fourth Amendment only so far as it was necessary to protect
the questioning officer from a concealed weapon and would be permitted to be no
more intrusive than necessary to detect the presence of a gun, knife, or
sap.Normally, a pat-down over the
clothing would be sufficient to detect a weapon, without the need to examine
the contents of pockets or inside clothing.

The
New York numbers tell this story as well.Less than one percent of those stops found guns, but about twelve
percent of them led to arrests or citations.Most of these arrests, over ten percent of the stops, were for drug
possession.A gram of cocaine or heroin
is about the size, weight, and hardness of a packet of sweetener found in a
coffee shop.An eighth-ounce of
marijuana – a typical street buy – is an amount of vegetation about the size of
a finger and packaged in a plastic sandwich bag.A surface pat-down only obtrusive enough to
find a lump of metal as large as a handgun, detects these tiny, soft parcels
surprising often.

Stop
and frisk as it is used is a perversion of democratic law enforcement.The role of police agencies is to enforce the
law and to preserve public safety.When
that role is improperly generalized as maintaining public order, then police
become controllers, not protectors.The
inability of a citizen to walk the public streets without public scrutiny and
harassment marks, not a well-functioning democracy, but is a mark of
totalitarianism.We must regain control
of the police, and ending stop and frisk would be a significant starting point.

[1]
This reasoning is why so many of the procedure’s proponents insist on calling
it “stop, question, and frisk”.

1 comment:

in "The NYPD Tapes" (2013), Graham Rayman exposes much of the background and misuse of stop and frisk by NYPD. It's primarily a expose of the Guiliani-Bloomberg COMPSTAT program and its perversion under Ray Kelly.